Canadian HR Reporter

CANADIAN HR REPORTER FEBRUARY 2019 10 NEWS is Empowered by: is Empowered by: A Great Leader A Great Leader www.scnetwork.ca Networking, Mentoring, Peer-Peer Feedback Formal Online & Of ine Learning On the job experiences & challenges 20% 10% 70% Join SCNetwork, for a monthly dose of thought leadership and grow your community of peers in a collaborative space. We welcome all HR professionals who support business success through people. Cultivating the Power of Human Capital for 35+ Years! Looking for a way to achieve the 30% you need to become a great leader? that decision to the Supreme Court of Canada — while obtain- ing an interim injunction prohib- iting Suncor from carrying out the testing. But in June 2018, the Supreme Court denied Unifor's appeal. ere are two key issues in- volved — safety and privacy, ac- cording to Loretta Bouwmeester, partner at Mathews, Dinsdale & Clark in Calgary. "Essentially… this move, this negotiated resolution, took the wind out of the sails of those that would challenge it," she said. "Now that one of the largest unions in the country said it's not going to stand in the way of random test- ing, what impetus would there be for another union to do so? at's why this is such a key decision." "It's still not going to be com- mon or acceptable in that many workplaces, but now it's no lon- ger completely remote either. Be- cause before, if not Suncor, (then) who? e problem was if Suncor couldn't meet the bar, it was highly questionable if anyone could." Random drug testing is a devel- oping area and with the legaliza- tion of cannabis, more employers may decide to pursue such a pro- gram, said Hilary Page, labour and employment lawyer at Spring Law in Toronto. "But it's important to note that Suncor — they're in Fort McMur- ray, they're in Alberta — and that's probably one of the most safety- sensitive worksites out there, so it's a bit of unique beast." Suncor's decision is a good step, said Kelsey Orth, a partner at Crawford Chondon & Partners in Brampton, Ont. "It's a reasonable proposition. ey want to address safety and the union's not standing in their way in that regard... But I think we'll see a few things still to be ironed out with respect to how that policy comes into play and how it's used." Union stands down — for now The concerns around random testing that existed before are still there, but it was better to find a compromise with Suncor than draw out the legal battle, said Scott Doherty, executive as- sistant to the national president of Unifor. "We came up with an agree- ment that both parties could live with… It was not in the sense that we gave up on the fact that our members have rights and we have concerns around random drug testing and whether or not it's ef- fectively controlling safety issues," he said. "is is about addressing an individual issue at one facility. We have lots of manufacturing in other industries where there isn't random testing and we would fight random testing." The union recognized there have been serious safety issues in Fort McMurray for quite some time, said Doherty. "Circumstances have changed from when we originally were fighting random drug testing to today, and you have to be realistic about that," he said. "We may at some point in time have to take on that fight again. We're hoping that we don't have to, but we're not prepared to just give a carte blanche to Suncor either." "It's our hope that random test- ing isn't going to happen at Sun- cor forever — I think it's Suncor's hope as well." As part of the agreement with Suncor (which did not respond to requests for an interview), there will be meetings on a regular ba- sis to discuss issues and come up with compromises or reasonable decisions on how to proceed, said Doherty. "ere's definitely going to be some legal challenges both within the workplace but also outside the workplace when it comes to the legalization of cannabis, but we think we have an opportunity at Suncor to continue to have con- versations with them." Challenges remain Going forward, it won't necessar- ily be smooth sailing for Suncor, as it will have to deal with issues around accommodation and the mechanics of the testing. "is was about privacy and human rights but now it'll also shift to an accommodation anal- ysis on whether or not there's sufficient accommodation," said Bouwmeester. "We do have the Elk Valley coal case, which tells us as long as you have a very strong policy that con- templates accommodation and is clear around the expectation for fitness for duty, that someone can be terminated for policy violation, not for the fact of disability." "It's definitely become a high bar. As long as employers do the right thing on the front end, they're going to be pretty defen- sible on the back end." If someone is tested and found to have alcohol in her system, for example, she could claim she has an addiction and wants accom- modation, said Page. "But the person still always has to be fit for duty. So, it doesn't matter if I'm an alcoholic, they can't accommodate me being im- paired at work, so what that ac- commodation looks like has to be different in every case." Regardless of whether testing is allowed, there's still a long way to go before this is a straightforward process, according to Orth. "Even in Suncor's case, they may still get some individual chal- lenges based on the method of testing and so on," he said. "at's always been the struggle with the case law… because the testing was not as accurate, it didn't justify the invasion of privacy." e issue with privacy rights of employees has always been that the only accurate ways have been blood tests or urinalysis — and even then, the accuracy was questioned, said Orth. "Blood tests could only identify use in the past 12 to 24 hours, and that's not with respect to marijua- na necessarily, but with respect to other drugs, so it doesn't test cur- rent impairment," he said. "From a urinalysis perspective, my understanding is that all it does is evaluate impairment within a three- to five-day window after ex- posure, and it has different impacts depending on whether it's one time or a frequent user or so on." With marijuana testing, a work- er may have high tetrahydrocan- nabinol (THC) levels, but not be considered impaired. So, the union may challenge every posi- tive test, said Orth. "Maybe that's the angle Uni- for is going to take — fight it on a case-by-case basis, and make it so difficult for Suncor to actu- ally implement… I hope that's not what's going to happen but that may be what happens." Discussions with Suncor are ongoing, said Doherty. "Obviously the testing that's been used by the employer is... part of those conversations on an ongoing basis to ensure that our members are not being exposed and having to… be tested in a way that we don't believe is the right way to do things, given the situa- tion in Canada and the technology that exists." More effective testing tools that can show impairment are needed, because otherwise "we are left with a risk-based approach tied to presence," said Bouwmeester. Newer behavioural science- based approaches being devel- oped — such as testing helicopter pilots with a simple follow-the- ball exercise — are not interested in the root cause of the impair- ment, and use a baseline approach to assess impairment, she said. "We may get to a place down the road where biometrics will be the focus, and it'll be on impair- ment generally and less focus on what the cause is… We're going to see technology outpace the ethical and legal issues." Implications for employers Despite the Suncor development, the law is the same for random drug testing. ere needs to be a safety-sensitive workplace as well as evidence — such as near miss- es or accidents — that suggests a problem with substance abuse, said Page. "(Employers) need to act rea- sonably, and the degree of in- fringement of employees' privacy needs to be proportionate to the problem so… the greater the problem, the greater the invasion of privacy. at's why it's impor- tant they have evidence of a gener- al problem with substance abuse." Many workplaces have zero- tolerance policies but there are challenges when it comes to con- tractors who are expected to abide by the same policies, said Orth. "Relaxing of rules with respect to drug testing will hopefully pave the way for some kind of sensible program to come into play in ev- erybody's workplace," he said. "Ultimately, my advice to em- ployers is to err on the side of caution… if you think somebody's impaired, send them home (and) deal with the workplace conse- quences later rather than having to deal with an injury or cata- strophic injury." From privacy, human rights to accommodation SUNCOR < pg. 1 "Maybe that's the angle Unifor is going to take — fight it on a case-by- case basis, and make it difficult for Suncor to actually implement." However, that decision speci- fied that there was a high bar in such circumstances and most situations involving a conflict be- tween a work requirement and a family obligation would not be considered discrimination based on family status. is was later demonstrated in the 2014 decision Johnstone v. Canada (Border Services Agen- cy), which limited parental re- sponsibilities worthy of human rights protection to those "that a parent cannot neglect without engaging their legal liability for the child." e tribunal found that through most of the process in applying for general leave, Durikova indicated she wanted to care for her child and teach the child Slovakian as well as English. On her application form, Durikova wrote that her in- tention was to take care of her daughter. However, none of these reasons qualified as special circumstances about the care of her daughter that made it more than her personal choice to take additional leave or that care for her daughter would be unavailable if she returned to work, said the tribunal. e tribunal also found that LDB's interference with Duriko- va's wish to be at home with her child through its requirement that she report to work follow- ing her parental leave didn't cause any real disadvantage or adverse impact to her relation- ship to her child or her parental responsibilities. The tribunal determined Durikova's human rights com- plaint had no prospect of success and dismissed it. ''It appears clear that Ms. Durikova wanted to stay at home with her child to pass on her cul- ture and language,'' said the tribu- nal. ''at is a laudable desire." "However, it appears to be a choice rather than a substantial family duty or obligation as con- templated by Campbell River," it concluded. For more information, see: •Durikova v. BC Ministry of Jus- tice, 2018 CarswellBC 3148 (B.C. Human Rights Trib.). •Campbell River & North Island Transition Society v. H.S.A.B.C., 2004 CarswellBC 1012 (B.C. C.A.). •Johnstone v. Canada (Border Ser- vices Agency), 2014 CarswellNat 1415 (F.C.A.). Jeffrey R. Smith is the editor of Canadi- an Employment Law Today. For more, visit www.employmentlawtoday.com. Personal desire not enough CHILD CARE < pg. 5

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